POCSO Act Needs More Teeth – To Ensure Zero Tolerance Against Rising Instances Of Horrific Crimes Against Children

July 28, 2014

Crimes against children represent the worst forms of cruelty, especially because it violates the basic trust and care that a child expects from an adult. Two recent cases in Bangalore have caused an uproar and anger with thousands of parents coming out to the streets in protest against the school and the Government.

A few months ago, the parents of the first child contacted me for assistance. The child, a 2½ year old at an upscale school, had been molested by a school driver. The young parents atypically had decided not to be silent and hide, as is the case with most parents, but rather to ensure the attacker was brought to justice. Their silent and stoic determination to seek justice for their daughter and to ensure that the criminal was not allowed to revisit this on other children has inspired me, that day on, to join their battle and that of countless other parents.

While the Bangalore Police under the then Commissioner Auradkar, DCP Mohanty and IO ACP Soumyalatha were superbly sensitive and put together an excellent case in a short time, the case - the first in our State to be tried under the Protection of Children Against Sexual Offences (POCSO) Act - has since languished in Court - suffering the fate of adjournments, despite the parents ensuring they had their own counsel to help the prosecution process and despite POCSO talking about Special Courts.

One of the shameful things about this has been the amazing lack of sensitivity amongst the Political leaders within the government including the Chief Minister and Home Minister. The insensitivity includes the famous quote of “The government is not responsible, but parents are.” That insensitivity of our political leadership is now even more obvious to all, after the recent rape of a 6-year old. It has taken these tragic and shameful instances for the Government to finally wake up from its slumber despite enough evidence of crimes against children all around them for a long time.

Two things I had requested from the Government that were never implemented -
a) Arrest and Prosecution of the School Management;
b) Setting of Special courts by Government.

If the first had been done, the message would have gone out to all the school managements about the seriousness of the Government and the subsequent crimes may have been averted.

The recent incident only reaffirms the need to make school managements responsible for children’s safety against this kind of crime in school premises (including the school bus). This also raises the question of regulation of schools and child safety within these schools.

While Section 28 of the POCSO Act designates Special Courts for the purposes of providing speedy trial in these cases, most states have not yet brought under regular courts, denying children their right to a child- friendly system. There is in fact, only one such child-friendly court in the country, in the premises of the Karkarduma courts in New Delhi!

Pendency rates in cases relating to Child Sexual assault is over 84.5%! In a question I had raised in Parliament on the number of cases registered under POCSO and the number of convictions, it was alarming to note, as per the Minister’s reply, that while the number of cases registered have risen from 7112 in 2011 to 12363 in 2013, the number of people convicted have only risen from 1196 in 2011 to 1611 in 2013! The failure to set up Special courts thus far is yet another instance of diluting the message of zero tolerance by delaying justice and conviction of the criminal.

While every such incident rightfully sparks outrage, a few months later, a similar incident prompts another post script- an analyses of “what we would have done”. But the time has come for definitive change. We cannot go on in the hope that this blows over and that there is no other criminal, in any other school, who will perpetrate and commit another crime, on another innocent child.

The POCSO Act is a reasonably well drafted Act. While we have the necessary framework in place, what we lack, as is the case with a multitude of laws in the country, is the enforcement of the law. Child crime cells are required in Police stations to help in enforcement. Effective prosecution of crimes against children is important as poor prosecution would not just further increase the trauma of the victim and parents, but will also erode the faith in the justice system in the state.

In the interest of justice, POCSO Act needs the following changes to make it stronger and more effective:

• As the Bangalore case has highlighted, one of the key amendments required is to ensure school managements are brought under the ambit of the law, and school management and teachers are made accountable & responsible for safety of children in school premises under POCSO for any crimes committed in school premises/school bus and/or by school staff.

• While the law mandates Special Public Prosecutors, they only remain on paper. Worst, an understaffed and overstretched judiciary means adjudicating Judges in most cases have no prior experience or expertise in dealing with such sensitive matters, forced to take on double charges on cases even as stark as dealing with economic offences in the morning and dealing with a Child Sexual Assault case later in the day! This lax approach must be remedied. Public prosecutors must create specialists in prosecuting these cases and the Prosecution of these cases must be in special fast track courts to ensure speedy trial & conviction of guilty.

• While Section 32 of the POCSO Act provides that a Special Court shall complete the trial as far as possible within a period of one year from the date of taking cognizance, such a section is only directory and not mandatory. What we need is a specific, time bound system of justice delivery which makes it “mandatory” for Special Courts to complete trials in a year and not leave it to the recourse available under “speedy justice as far as possible”.

• To send out a strong signal of Zero Tolerance, POCSO must also ensure that no person accused under POSCO is able to obtain anticipatory bail. Obtaining anticipatory bail allows perpetrators to circumvent or at least delay the judicial process.

• A significant area for scope of improvement under POCSO would be instituting steps to ensure the safety of the victim. While POCSO provides for the recording of a child’s evidence within a period of 30 days, such a period is crucial and the victim/ family can be influenced or threatened to either withdraw the complaint or tone it down. An amendment to ensure that evidence is recorded on an emergent or immediate basis, within the first 24-48 hours would ensure the victim is protected from any duress. Improvements to ensure a more holistic Act should also consider provisions for victims and witness protection as in several cases, other children may be witness to such offences and require protection for efficient prosecution and adjudication.

Our children need to be safe from the threat of Paedophiles. The POCSO Act needs amendments to make it stronger and serve to be the ultimate deterrent to the crimes and send a strong signal of Zero Tolerance, that crimes against children will be punished – swiftly and severely.